Acton and Muir Russell at Tribunal

Tomorrow (15 January 2013), the Information Tribunal will hear David Holland’s appeal of the ICO decision (FER0387012 ) regarding the connection of the Muir Russell Review and UEA in respect to FOI legislation (see FOI correspondence here.) Both Muir Russell and UEA Vice Chancellor Acton are scheduled to appear.

The hearing is at Court Room 7, Field House, 15 Breams Building, London EC4A 1DZ and commences at 10:30. Acton is scheduled for 11-12:30. Muir Russell is scheduled for 1:30-3:00. Also scheduled to attend on behalf of UEA are Brian Summers and Jonathan Colam-French plus three attorneys from Mills and Reeves. Muir Russell is also anticipated to have his own counsel present. David Holland is representing himself.

David will have an extremely difficult time pinning down either Acton or Russell. The transcripts of the Science and Technology Committee show that both are prone to give lengthy and unresponsive answers, thereby running out the clock.

For example, Muir Russell was asked how they chose the three examples of peer review – which barely scratched the surface of the peer review controversy and included an incident with the editor of Energy and Environment that was not of the faintest interest in the major climate blogs or commentary. Muir Russell falsely said that the three incidents were “at the top of the head” when the story broke and then ran the clock with diversionary puff about Richard Horton.

Q104 Pamela Nash: This question is to Sir Muir. In your review you found no evidence to support that there was any subversion of the peer review process and you examined three specific instances. Could you tell us why those three instances were chosen?

Sir Muir Russell: They were the three that had been at the top of the head, as it were, in the comments that were made when the whole story broke. I keep going back to what I said to Mr Williams. They were the things which we thought, as we were looking at the issues, were solid and good examples to pick and to test the accusations that had been made. I know there are comments that say, “You could have found more. There could have been others.” They weren’t in the forefront at the time. If you look at the footnote in Montford, I think it is, about one of them, it says that it wasn’t actually clear what the allegation was, so one has to be balanced. We couldn’t do everything but we looked at three very solid accusations.

The Soon and Baliunas was one that came up all the time and we looked at that fairly thoroughly.

The editor of Energy and Environment had sent a lot of emails to me about what we would do. So it was important to check out that position.

Then there was the Cook stuff and there is quite an extensive explanation of what was actually going on there. I think you will find three quite detailed explanations based on information that we got about what was actually happening.

Then, of course, we did the important thing of getting Richard Horton to work on peer review for us. You will see from the record of the predecessor Committee that one of the things that had happened that was, let’s say, uncomfortable, because I was quite uncomfortable sitting here when being asked about it, was that Dr Campbell of Nature had to leave the group because he had been interviewed and had said there was nothing wrong with what CRU had done. That was a prejudicial thing about the inquiry. It had nothing to do with his views about climate science. It was prejudicial about the inquiry, and he very properly said, “I have to leave.” So we brought in Richard Horton, not as a full member in the sense of being on the team and looking at all the work that we had done, because it would have been very difficult to catch up on that, but we brought him in to give us advice on peer review. We peer reviewed that because we got Liz Wager of COPE to have a look at that as well. You will see all that in the report. So I think that setting that set of judgments against the facts of the cases as we found them was really quite a good and balanced way of getting a serious big picture about what these people had been doing in relation to peer review and also peer review more generally so there are specific answers and there are some general points to go forward with on peer review. I put my hand up and say, yes, there could well have been other cases that we might have looked at, but these were the ones that everybody seemed to think were at the top of their heads at the

Another kind of problem will be how to handle totally unresponsive answers, the unresponsiveness of which is clear in transcripts, but, unless you are a litigation lawyer, hard to pick up at the time. Consider the following from Acton to Stringer:

Q96 Graham Stringer: And you recorded those meetings with Professor Jones and his team?

Acton’s answer was completely unresponsive:

Professor Edward Acton: If you examine our website you will find that these statements have been there for some time.

A recent FOI from David Holland has revealed that the UEA claims not to have a copy of the full statements from Briffa or Jones given to Acton nor any information on whether the supposed statements were signed nor even information on the date of the supposed statements.

It will also be very hard for David to pin Acton down when he makes statements that cannot be corroborated and sometimes seem to come out of thin air. For example, Acton told the following to the Science and Technology Committee:

Can those e-mails be produced? Yes, they can. Did those who might have deleted them say they deleted them? No. They say they did not. I wanted to be absolutely sure of those two, and I have established that to my satisfaction.

However, at the time, the key emails from Wahl to Briffa could not produced.

David’s task tomorrow will be very difficult, but he’s done a remarkable job thus far against UEA obstruction and I wish him well tomorrow.

The actual issue of the relationship between the Russell review and the UEA is an interesting one.

Would it help to contribute funds?
Would a lawyer on David’s side help? Or make the confusion worse?
Steve: David knows the file and the legislation very well and it would be very difficult to properly brief a lawyer in finite time. We talked about this a while ago and he wanted to finish the job himself. In theory, the Tribunal is supposed to make it possible for people to represent themselves. At this time, good wishes are probably the best.

As I lawyer in the U.S., I must say that Holland really needs a lawyer. I realize the expense could be large but maybe a UK lawyer who believes in true science and transparency could volunteer to help him. Holland undoubtedly understands the big picture UK FOIA, but trying to master the rules of the hearing and how the rules of evidence would be applied is really difficult. On top of that the opposition is very slippery. (Before posting I tried to see if he is a lawyer, but couldn’t find anything)

Steve: the opposition is slippery. However, David has accomplished a remarkable amount on his own and wants to play his own hand. The tribunal is supposed to make allowance for lay representation.

In my experience, quite often lay people without lawyers are given some leeway and modest assistance during legal hearings. However, where the opposition is well-connected, as is the case here, the opposite is usually what happens. The law applicable during hearings is often counter-intuitive, so in 80-90% of cases such as those of Mr. Holland, the assistance of a lawyer is quite helpful. I am hoping that I am wrong and that all goes well tomorrow for Mr. Holland.

Also, I would suspect that if Mr. Holland had looked for volunteers and was savvy about lawyers and legal proceedings, that it would have been quite possible for Mr. Holland to find a lawyer to help him at a reasonable cost or, maybe, no cost — many lawyers strongly support FOIA and government transparency.

JD

Steve: perhaps. as you observe, if Holland was “quite savvy” about legal processes, he might have done it another way. But he’s an engineer. He’s done what he can; there’s not much point editorializing about this on the day before.

The UEA’s position is that they do not have a contract with Russell, that he is a sort of public appointment. It’s more than a bit hard to understand their precise theory as to what the Russell review was a legal entity.

A couple of questions just occurred to me. The Charter of the University sets out the powers of the University. I don’t see that the University has the power or authority under its charter to establish an “independent” agency.

Along the same lines, the Vice Chancellor is the chief administrative officer of the University. Even if the Council of the University had the power to establish an independent agency, it seems implausible to me that the Vice Chancellor of the University acting unilaterally has the power to establish an independent agency. The VC has the right to enter into contracts, but I don’t see where he can get to grander powers.

Similarly, let’s suppose that the Russell review bought an automobile or something like that (and that the University paid for it.) When the Russell review disbanded, who would have title to the automobile? Would it be the property of the UEA or of Russell personally?

Steve, as an American lawyer, I am not knowledgeable with respect to U.K. law. However, this provision appears to give the UEA broad powers: “4.1 Subject to the provisions of the Charter and Statutes, and in the furtherance of its objects, the University shall have all the powers of a natural person including, but not limited to, the power: ….’ Again, it is dangerous to take provisos out of context, particularly in a country that is foreign to you, but this is one provision that appears to be relevant to one of your questions.

Steve, I agree that they are playing fast and loose with the word ‘independent.’

Most universities have the power to establish companies (for example, to market their IP) but they are not ‘independent’ – otherwise the university could just give its assets away. So, the companies may operate outside the university’s day-to-day control, but the university would have at least majority control of the shares and Board representation. If the company was sold, it would have to be at market rates.

Then there are the Schools, Institutes etc which operate as stand-alone units – but again, they are required to conform to the university’s rules in an agreed fashion if they associate themselves with it.

I can’t think of how a publicly funded university could create a truly ‘independent’ entity through a delegated power. It seems like an oxymoron to me.

“4.1.9 to do anything else necessary or convenient, whether incidental to these powers or not, in order to further the objects of the University as a place of education, learning and research.”

That gives the executives at the University broad discretionary powers.

I’m not sure this is relevant, but in the US various executives, including the President, have the power to convene so-called independent commissions to study controversial or intractable problems that seem to defy resolution or that would appear to represent a conflict of interest if persons in positions of authority investigated and ruled decisively on them.

Having little knowledge of English law or custom, nevertheless it seems to me that the university’s right, and especially the Chancellor or Vice-Chancellor’s right to convene such an “independent” inquiry would be within their authority. Indeed, it would likely be viewed as the most responsible, desirable course in a situation such as this where the reputation of the university is at stake and any investigation by them would be viewed with suspicion.

That said, the performance of the so-called “independent” commission in this case and the conduct of the university in overseeing the inquiry have not been to high standards and have had the opposite affect intended.

4.1 Subject to the provisions of the Charter and Statutes, and in the furtherance of its objects, the University shall have all the powers of a natural person including, but not limited to, the power:…
4.1.9 to do anything else necessary or convenient, whether incidental to these powers or not, in order to further the objects of the University as a place of education, learning and research.

The University has “natural person powers”. Section 4.1.9 does not grant a new class of powers over and above natural person powers, it merely itemizes that this is one sort of natural person power possessed by the UEA. The analogy to the US President is very unhelpful and off-point since powers of the US President are set out very differently and require complicated exegesis that does not illuminate the point here.

“Steve: perhaps. as you observe, if Holland was “quite savvy” about legal processes, he might have done it another way. But he’s an engineer. He’s done what he can; there’s not much point editorializing about this on the day before.”

My point Steve is that if further appeals are possible and necessary (and I strongly suspect that they are available), that Holland should try to get legal help. Again, I hope that all goes well tomorrow and that further action isn’t required.

For “slippery” read dishonest. If Muir Russell and the UEA had nothing to hide and a good case to make, they’d be front and center with clear answers and copious evidence. Their deportment is the opposite of that, and so the inference of something to hide and no good case (= malfeasance) becomes very clear.

Also scheduled to attend on behalf of UEA are Brian Summers and Jonathan Colam-French plus three attorneys from Mills and Reeves. [emphasis added -hro]

Wow! Not one attorney, but three! I guess the UEA representatives won’t require the “coaching” services such as were sourced by Wallis, Bowen and/or Outside Organization, this time.

But speaking of lawyers, and knowing UEA’s history of “pea and thimble” (or perhaps “pea and thumb-drive”) creativity and artistry … it would be interesting to hear an independent lawyer’s interpretation/opinion of an apparent discrepancy between Pro-Vice-Chancellor, Thomas Ward’s phrasing in UEA’s April 11 … uh … decline, and that found in the ICO’s decision which is now being appealed.

[UEA April 11, describing UEA decision of Feb. 27:]

Our refusal of your request was based on our finding that the University did not possess the requested information at the time of the request [emphasis added -hro]

[ICO March 26, describing same UEA decision of Feb. 27:]

4. The UEA responded to the request on 27 February 2011 when it informed the complainant that it did not hold the requested information and therefore the exception in 12(4)(a) applied.

Anyway, all the best to David in his continued battle against the masters of obfuscation.

Acton’s witness statement in this proceeding contains a number of fabrications. For example:

36 Notably, ICCER’s website was set up entirely at Sir Muir’s instigation. The University played no role in setting up the website, or indeed in proposing that the review team should have a website. The University also played no part in maintaining, servicing or overseeing the website at any stage;

But if you do the whois http://www.networksolutions.com/whois-search/cce-review.org on “www.cce-review.org”, the Muir Russell website, you’ll see that the website was set up Lucy MOuland of the UEA Vice Chancellor’s Office (and was renewed recently by the UEA). The website is unequivocally registered to the UEA.

It’s hard to imagine why Acton make such flagrantly untrue statements – other than there don’t seem to be any consequences for making untrue statements.

31 Throughout the course of the inquiry, Sir Muir and his review team made their own decisions and did not defer to the University for approval as to the course of the investigation.

COmpare that to the facts leading up to the SOmmer report. Norton of Muir Russell wrote to the police saying that the Russell review had recommended extraction by Qinetiq:

The Review Team discussed this yesterday and we have made a recommendation to the UEA Vice-Chancellor (who in DPA terms owns this information on behalf of the University) that Qinetiq should be asked to proceed but just for three machines (those of Prof Jones, Prof Briffa and Dr Osborn).

then that UEA authorized Qinetiq

UEA have just confirmed that they would like to go ahead,

It was UEA who entered into a contract with SOmmer and then received the unexpurgated version of the Sommer report.

I don’t really think it’s fair to say that because a party registered the domain name they necessarily had anything to do with setting up or administering the server it pointed at.

Steve: Acton stated: “The University also played no part in maintaining, servicing or overseeing the website at any stage.” “website”, not “server”. Registering the domain name, renewing the domain name are parts of maintaining, servicing or overseeing the website. Acton’s claim is readily contradicted.

Its highly likley that fully lawyered up Acton and Russell will try their old ‘tricks ‘ to what extent they can get away with them depends on the person heading the Tribunal. But I would not be surprised to see stonewalling via ‘I can’t remember the exact details ‘ . Sadly this is not a review of the poor way these ‘investigations’ where conducted ,so Hollands best hope is to get some small but important points accepted in this his favour.
To face reality you have to accept that even if he wins all hands down , the press will not give coverage to such old and for some ‘unwelcome ‘ news .

A family I know was having their $20,000 probate estate being dissipated by a lawyer charging $225 per hour. I had never handled a probate matter, but I agreed to handle this matter for $500. I negotiated the previous attorney’s fees down from $5240 to $4500 and spent 50 hours on the case. (If the family would have let me, I preferred to take this matter to a judge and ask for much less but the family wanted to take the settlement offer. Also, there was a complex wrongful death lawsuit that was filed by a tort attorney after the first attorney for the estate resigned. This and other matters required 50 hours of my time. I did it mainly because I hated to see someone getting totally screwed.)

I don’t disagree with you, JD, but having been a successful and unsuccessful litigant on both sides of the water, albeit as principal rather than lawyer, but working very closely with my advisers, I have found that experience and expertise gained in the US and UK are far from interchangeable.
It is much too late now for David to engage a lawyer, let alone brief one in the arcana of the case, but should he want to do so in future I would be happy to make a contribution. Meanwhile rest assured that he is extraordinarily familiar with the facts of the case, and unless Acton and co have changed tack and started to be truthful with their counsel they will be seriously hampered by their level of misinformation.

The key to examining a slippery witness is to keep in mind that the purpose of questioning is NOT to get the witness to tell the story you want told. Instead, the goal is to tell the story you want told yourself, with the witness just serving as a prop, who says nothing more than “yes,” or “that’s right,” from time to time. Of course, slippery witnesses don’t want to do that, so you have to beat them into submission during the first part of their testimony. That’s usually done with a transcript of their earlier testimony, which you use as a script. Whenever they go “off-script,” you pull it out, and say, “Well, on June 14th, you said, ‘…’, isn’t that right?” You don’t ask them to explain why they said it, or what they meant; that’s the classic “question too far.” You just leave their earlier statement to speak for itself.

All of this is very much contrary to the way a scientist (or engineer) naturally thinks. Typically, they naturally communicate in a way that assumes their interlocutors are willing participants in the pursuit of truth (even when they know otherwise).

Not knowing the legality of videotaping or audiotaping the hearing or the practical legal consequences of it, from a purely public relations standpoint, I hope that the hearing is taped and that later on others as well as myself will be able to view it.

I think Shakespeare opined in this area. Understand that while the judge may and should provide leeway to a self-represented party, he may not be seen to be assisting either party. Even if David makes foolish and obvious mistakes, the judge really can’t help him or suggest how he might do something correctly, at least to the extent the judge might be seen as assisting a party.

However, David has excellent insight, and, importantly, it appears he has much of the facts on his side. Best of luck! May you have a fair hearing!

Best of luck David. I kind of like the idea of David taking them on solo. No matter what the result is the Climate Science community is going to pin any negatives that come out of this on big oil or big energy. David going solo makes that argument look stupid. Particularly when UEA brings in their (4) “big academia” lawyers. David vs Goliath.

For non-baseball fans, Casey Stengel was the highly successful manager of the NY Yankees in the late 1940s and 1950s. He was called upon to testify about some baseball matter in Congress, and proceeded to ramble in non-understandable phrases for his allotted time. It was Stengel’s intention to filibuster the Senate Committee, which he did magnificently. The young slugger, Mickey Mantle, was called upon to testify next. When asked what he wished to say, Mantle pointed to his manager (Stengel) and said, “My views are about the same as Casey’s.”

Here is the transcript, so that everyone can see that Sir Muir studied Stengel’s testimony, but couldn’t produce the laughter:

David Holland is doing all this for nothing. Steve MacIntyre does this for nothing. Anthony Watts does everything he does for nothing. everyone on the sceptic side does what they do for nothing. It would be nice if there was just one lawyer on our side who would also pitch in for mothing…

Best wishes, David. Of the various comments above, apart from Steve’s which stand alone, I’d go with qbeamus.
Do nothing to annoy the Judge. If you have not done so already, read the usual ways in which an application can be made in the hearings for hostile questioning of a recalcitrant witness and for a witness to be classed as unreliable during proceedings.
Remember that there could be reasons for another day in Court on following matters, so ground can be prepared at this weeks hearings.
Now forget all the advice you get from bush lawyers like me, be relaxed, confident and above all, scrupulouly direct and honest with your replies.

… Just come out of David Holland’s hearing and in a cybercafe, recharging my MacBook!

David did especially well in questioning Muir Russell this afternoon I thought. As Andrew’s just said, we may not win this one but it was a real education to witness (and David Henderson was sitting between us, a giant beside one pygmy at least!)

The tribunal of three (am I repeating myself?) the other end of the room seemed on the ball and very fair, based on all their interventions. ..

We got back from London around 7 pm local time, having left here at 6:30am, to battle through the snow, which I am sure the UEA laid on specially for me. : )

I am flattered by your many positive comments, for which I am grateful.

Judgement was reserved, but I think I could say that we could not have had a more diligent, competent and fair-minded tribunal and I have to say the UEA and the ICO were not without some arguable points. Andrew Montford, David Henderson and Richard Drake were there and may report at BH on some of the interesting things that emerged.